The Bill of Rights and Hitler

I’m getting close to writing an article (as a spinoff of a book on the New Deal) on how Franklin Roosevelt made the Bill of Rights a central component of New Deal constitutionalism . Another piece of the puzzle that I want to share is a radio address that the President gave one week after Pearl Harbor:

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Free Americans:

No date in the long history of freedom means more to liberty loving men in all liberty-loving countries than the fifteenth day of December, 1791. On that day, 150 years ago, a new Nation, through an elected Congress, adopted a declaration of human rights which has influenced the thinking of all mankind from one end of the world to the other.

[This reference to human rights strikes me as significant. Today we take that term for granted, but it was not common at the time.]

There is not a single Republic of this hemisphere which has not adopted in its fundamental law the basic principles of freedom of man and freedom of mind enacted in the American Bill of Rights

There is not a country, large or small, on this continent and in this world which has not felt the influence of that document, directly or indirectly.

Indeed, prior to the year 1933, the essential validity of the American Bill of Rights was accepted everywhere at least in principle. Even today, with the exception of Germany, Italy, and Japan, the peoples of the whole world—in all probability four-fifths of them—support its principles, its teachings, and its glorious results.

But, in the year 1933, there came to power in Germany a political clique which did not accept the declarations of the American bill of human rights as valid: a small clique of ambitious and unscrupulous politicians whose announced and admitted platform was precisely the destruction of the rights that instrument declared. Indeed the entire program and goal of these political and moral tigers was nothing more than the overthrow, throughout the earth, of the great revolution of human liberty of which our American Bill of Rights is the mother charter.

The truths which were self-evident to Thomas Jefferson which have been self-evident to the six generations of Americans who followed him—were to these men hateful. The rights to life, liberty, and the pursuit of happiness which seemed to the Founders of the Republic, and which seem to us, inalienable, were, to Hitler and his fellows, empty words which they proposed to cancel forever.

The propositions they advanced to take the place of Jefferson’s inalienable rights were these:

That the individual human being has no rights whatsoever in himself and by virtue of his humanity;

That the individual human being has no right to a soul of his own, or a mind of his own, or a tongue of his own, or a trade of his own; or even to live where he pleases or to marry the woman he loves;

[The reference to marriage is fascinating. This may be the first time a President mentioned a right to marry.]

That his only duty is the duty of obedience, not to his God, not to his conscience, but to Adolf Hitler; and that his only value is his value, not as a man, but as a unit of the Nazi state.

To Hitler the ideal of the people, as we conceive it—the free, self-governing, and responsible people—is incomprehensible. The people, to Hitler, are “the masses” and the highest human idealism is, in his own words, that a man should wish to become “a dust particle” of the order “of force” which is to shape the universe.

To Hitler, the government, as we conceive it, is an impossible conception. The government to him is not the servant and the instrument of the people but their absolute master and the dictator of their every act.

To Hitler the church, as we conceive it, is a monstrosity to be destroyed by every means at his command. The Nazi church is to be the “National Church,” a pagan church, “absolutely and exclusively in the service of but one doctrine, one race, one Nation.”

To Hitler, the freedom of men to think as they please and speak as they please and worship as they please is, of all things imaginable, most hateful and most desperately to be feared.

The issue of our time, the issue of the war in which we are engaged, is the issue forced upon the decent, self-respecting peoples of the earth by the aggressive dogmas of this attempted revival of barbarism; this proposed return to tyranny; this effort to impose again upon the peoples of the world doctrines of absolute obedience, of dictatorial rule, of the suppression of truth, of the oppression of conscience, which the free Nations of the earth have long ago rejected.

What we face is nothing more nor less than an attempt to overthrow and to cancel out the great upsurge of human liberty of which the American Bill of Rights is the fundamental document: to force the peoples of the earth, and among them the peoples of this continent and this Nation, to accept again the absolute authority and despotic rule from which the courage and the resolution and the sacrifices of their ancestors liberated them many, many years ago.

It is an attempt which could succeed only if those who have inherited the gift of liberty had lost the manhood to preserve it. But we Americans know that the determination of this generation of our people to preserve liberty is as fixed and certain as the determination of that early generation of Americans to win it.

We will not, under any threat, or in the face of any danger, surrender the guarantees of liberty our forefathers framed for us in our Bill of Rights.

We hold with all the passion of our hearts and minds to those commitments of the human spirit.

We are solemnly determined that no power or combination of powers of this earth shall shake our hold upon them.

We covenant with each other before all the world, that having taken up arms in the defense of liberty, we will not lay them down before liberty is once again secure in the world we live in. For that security we pray; for that security we act—now and evermore.

[I’ll add that FDR’s references to the Bill of Rights are (with one exception) only about the First Amendment. This foreshadowed the “preferred position” of the First Amendment in the Court’s subsequent jurisprudence.]

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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The German constitution under Hitler (i.e., the written document) was by no means immune to the influence of the Bill of Rights. Here are some excerpts:

Article 118 Every German is entitled, within the bounds set by general law, to express his opinion freely in word, writing, print, image or otherwise. No job contract may obstruct him in the exercise of this right; nobody may put him at a disadvantage if he makes use of this right. There is no censorship; in case of the cinema, other regulations may be established by law. Also in order to combat trashy and obscene literature, as well as for the protection of the youth in public exhibitions and performances legal measures are permissible.

Article 128 All citizens, without discrimination, are to be admitted, according to their talents and accomplishments, to public office. …

Article 135 All Reich inhabitants enjoy full freedom of liberty and conscience. Undisturbed practice of religion is guaranteed by the constitution and is placed under the protection of the state. General state laws are not affected hereby.

Article 136 Civil and civic rights and obligations are neither conditioned nor limited by the exercise of freedom of religion. The exercise of civil or civic rights, the admittance to public offices are independent of religious confession. Nobody is obliged to profess his religious confession publicly. …

Article 137 There is no state church. Freedom to form religious communities is guaranteed. …

Of course, these are from the Weimar Constitution of 1919, for which Hitler deserves no credit; and which he simply ignored, instead of bothering to amend.

Several of the religion-related articles from the Weimar constitution were deemed strong enough to have been expressly incorporated into the post-war Grundgesetz (Basic Law), and remain there to this day. And the second sentence of Art. 118 extends the guarantee of free speech to a domain not protected even in the US (much less here in Japan). I’m not entirely certain about the impact of Federal Constitutional Court jurisprudence on this point, but the free speech rights under the Basic Law (Art. 5) don’t appear to include this one, either.